BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100013056 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests credit for his Individual Ready Reserve (IRR) time towards his retirement years.

2.  He states he has served over 20 years in the Oregon and California Army National Guard (ORARNG and CAARNG, respectively).  He adds he was under the impression that he had completed 20 years of qualifying service and he would be fully eligible to receive retired pay at age 60, but he only received credit for 19 years and 7 months.

3.  He provides:

* a self-authored statement
* his National Guard Bureau (NGB) Forms 22 (Report of Separation and Record of Service), for the period ending 10 October 1996 and 25 April 2007
* a memorandum, Subject:  Notification of Eligibility for Retired Pay at Age 60 (20-Year Letter), dated 7 March 2007 and 8 March 2007
* a congratulatory letter, dated 31 May 2007
* ARNG Retirement Points History Statements, dated 13 March 2007 and 25 March 2010
* Permanent Order 18-4, dated 13 July 1989
* Permanent Orders 4-1, dated 26 March 1991
* Permanent Orders 12-1, dated 12 August 1992
* 
Permanent Orders 9-1, dated 29 July 1992
* Orders 244-9, dated 16 December 1994
* Special Orders Number 14 AR, dated 21 February 1995
* Orders 208-18, dated 21 October 1996

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's records show he was born on 23 November 1968.  He enlisted in the CAARNG on 27 February 1987.  On 30 September 1992, he was honorably discharged to accept an appointment as a warrant officer in the CAARNG.

3.  Orders 338-7, issued by Headquarters, Oregon National Guard, Salem, OR, dated 4 December 1999, show he was honorably discharged from the ARNG and as a reserve of the Army, effective 10 October 1999.  

4.  On 26 April 2000, he enlisted in the ORARNG in the pay grade of E-5.

5.  On 7 March 2007, he received his 20-Year Letter.  The letter notified him that he had completed the required years of service and was eligible for retired pay upon application at age 60.  The letter further stated that his eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation on his part.

6.  His ARNG Retirement Points History Statement, dated 13 March 2007, shows he completed 20 years of qualifying service for a nonregular retirement.  The statement shows, in pertinent part, that:

	a.  During beginning period 11 October 1999 and the retirement year ending (RYE) 26 February 2000, his status was listed as B1/D4 (ARNG Unit Member/U.S. Army Reserve (USAR) Control Group (Reinforcement)).  He earned 15 membership points and 50 career points for a total of 50 creditable retirement points.  He was credited with one qualifying year for retirement during this RYE.

   b.  During retirement year beginning 27 February 2000 and ending period     25 April 2000, his status was listed as D4/B1.  He earned 66 retirement points and had 1 full qualifying year.

7.  His ARNG Retirement Points History Statement, dated 25 March 2010, shows he completed 19 years, 7 months, and 14 days of qualifying service for a nonregular retirement.  The statement shows, in pertinent part, that:

   a.  During retirement year beginning 27 February 1999 and period ending    10 October 1999, his status was listed as B1 (ARNG Member).  He earned       31 inactive duty training points, 9 membership points, and 44 career points for a total of 44 creditable retirement points.  He was credited with 7 months and 14 days toward a qualifying year for retirement during this RYE.

   b.  During the period beginning 11 October 1999 and the period ending         25 April 2000, his status was listed as H3 (Non-Military, Civilian Break) and no retirement points were awarded.

8.  In the processing of this case, an advisory opinion was obtained on 
2 December 2010 from the Chief, Personnel Policy Division, NGB.  The advisory official recommended that the applicant's request be returned without action.  He stated a review of the applicant's 2007 ARNG Retirement Points History Statement disclosed an error and erroneously credited him for service in the IRR for the period 11 October 1999 to 25 April 2000.  The official stated that retirement points should not have been awarded for this period since he was discharged from active service with the ARNG as well as with the IRR.  

9.  He continued by quoting the Army Human Resources Command guidance published on the website and stated "eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation."  He further stated that administrative errors such as award of too many points can be corrected, but his eligibility for associated retired pay cannot be withdrawn.  

10.  On 3 November 2010, a copy of the advisory opinion was forwarded to the applicant for information and to allow him the opportunity to submit comments or a rebuttal.  He did not respond.

11.  Army Regulation 135-180 (Qualifying Service for Retired Pay Nonregular Service) implements statutory authorities governing the granting of retired pay to Soldiers and former Reserve Component Soldiers.  Paragraph 2-8 of the regulation describes qualifying service, as pertains to this case, as service performed in an active status in a Reserve component or in active federal service.  After 30 June 1949, a reservist must earn a minimum of 50 retirement points each retirement year to have that year credited as qualifying service.  When a person is in an active status for a period less than a full retirement year, a minimum number of retirement points are required to be earned in order to have that period credited as qualifying service.

12.  Army Regulation 140-185 (Training and Retirement Point Credits and Unit Level Strength Accounting Records) prescribes the types of training and activities for which retirement points are authorized.  The regulation states that retirement points may be earned by USAR Soldiers for active duty, or while in an active Reserve status, for active duty for training, initial active duty for training involuntary active duty for training, annual training, inactive duty training, and Reserve membership.

DISCUSSION AND CONCLUSIONS:

1.  An error was made in the preparation of the applicant's 2007 RPAS and it incorrectly credited him with a qualifying year during the period 11 October 1999 through 25 April 2000, a period in which he had a break in service.  Based on the incorrect information, he was credited with 20 years of qualifying service for retired pay at age 60 and subsequently issued his 20-year letter.  

2.  On 25 March 2010, his ARNG Retirement Points History Statement was corrected to show he had a non-military civilian break and credited him with
19 years, 7 months, and 14 days of creditable service for retirement pay.  As stated in his 20-year letter and confirmed by the advisory opinion, eligibility for retired pay may not be denied or revoked on the basis of any error, miscalculation, misinformation, or administrative determination of years of creditable service performed unless it resulted directly from fraud or misrepresentation.  

3.  Evidence of record shows and the applicant confirmed that he had a break in service and as such, he was not entitled to accumulate retirement points during his break in service.  Therefore, the ARNG Retirement Points History Statement, dated 25 March 2010, correctly shows his status and his qualifying service.  There is no evidence and he has not provided any to show that he was a member of the IRR and continued to accumulate retirement points and had
20 years of qualify service. 

4.  Additionally, since the error in the calculations was due to no fault of the applicant, he will be eligible for retired pay at age 60 with 19 years, 7 months, and 14 days of qualifying service.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__x______  __x______  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100013056



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ABCMR Record of Proceedings (cont)                                         AR20100013056



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